THIRD AMENDMENT TO CREDIT AGREEMENT
This THIRD AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), made and
entered into as of December 26, 2001, is by and between MATRIX BANCORP, INC., a
Colorado corporation (the "Borrower"), the lenders from time to time party
hereto (each a "Lender" and collectively, the "Lenders"), and U.S. BANK NATIONAL
ASSOCIATION ("U.S. Bank"), as agent for the Lenders (in such capacity, together
with any successor agents appointed hereunder, the "Agent").
RECITALS
A. The Borrower and U.S. Bank National Association, in its capacities
as a Lender and as Agent, entered into a Credit Agreement dated as of December
27, 2000, as amended by a First Amendment to Credit Agreement dated as of March
5, 2001 and a Second Amendment to Credit Agreement dated as of July 27, 2001 (as
amended, the "Credit Agreement"); and
B. The Borrower desires to amend certain provisions of the Credit
Agreement, and the Lenders and Agent have agreed to make such amendments,
subject to the terms and conditions set forth in this Amendment.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto hereby covenant
and agree to be bound as follows:
Section 1. Capitalized Terms. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to them in the Credit
Agreement, unless the context shall otherwise require.
Section 2. Amendments.
2.1 The definition of "Termination Date" contained in Section
1.1 of the Credit Agreement is hereby amended in its entirety to read
as follows:
"Termination Date": The earliest of (a) Xxxxx 00,
0000, (x) the date on which the Revolving Commitments are
terminated pursuant to Section 7.2 hereof or (c) the date on
which the Revolving Commitment Amounts are reduced to zero
pursuant to Section 2.8 hereof.
2.2 Section 1.1 of the Credit Agreement is hereby amended to
add the definition of "MBCT IV" in the correct alphabetical order to
read as follows:
"MBCT IV": Matrix Bancorp Capital Trust IV, a
Delaware statutory business trust.
2.3 Section 6.10 of the Credit Agreement is hereby amended to
add the following Section 6.10(o):
(o) Indebtedness of the Borrower to MBCT IV in the
form of junior subordinated debentures, in an aggregate
principal amount not to exceed $5,000,000 at any time
outstanding.
Section 3. Effectiveness of Amendments. The amendments contained in
this Amendment shall become effective provided the Agent shall have received at
least five (5) counterparts of this Amendment, duly executed by the Company and
all of the Lenders, and the Agent shall have received the following, each duly
executed or certified:
3.1 This Amendment duly executed by the Borrower.
3.2 A copy of the resolutions of the Board of Directors of the
Borrower authorizing the execution, delivery and performance of this
Amendment certified as true and accurate by its Secretary or Assistant
Secretary, along with a certification by such Secretary or Assistant
Secretary (i) certifying that there has been no amendment to the
Certificate of Incorporation or Bylaws of the Borrower since true and
accurate copies of the same were delivered to the Lender with a
certificate of the Secretary of the Borrower dated December 27, 2000,
and (ii) identifying each officer of the Borrower authorized to execute
this Amendment and any other instrument or agreement executed by the
Borrower in connection with this Amendment (collectively, the
"Amendment Documents"), and certifying as to specimens of such
officer's signature and such officer's incumbency in such offices as
such officer holds.
3.3 Certified copies of all documents evidencing any necessary
corporate action, consent or governmental or regulatory approval (if
any) with respect to this Amendment.
3.4 The Consent and Reaffirmation of Guarantors, in the form
attached hereto as Exhibit A, duly executed by each Guarantor.
3.5 The Borrower shall have satisfied such other conditions as
specified by the Agent and the Lenders, including payment of all unpaid
legal fees and expenses incurred by the Agent through the date of this
Amendment in connection with the Credit Agreement and the Amendment
Documents.
Section 4. Representations, Warranties, Authority, No Adverse Claim.
4.1 Reassertion of Representations and Warranties, No Default.
The Borrower hereby represents that on and as of the date hereof and
after giving effect to this Amendment (a) all of the representations
and warranties contained in the Credit Agreement are true, correct and
complete in all respects as of the date hereof as though made on and as
of such date, except for changes permitted by the terms of the Credit
Agreement, and (b) there will exist no Default or Event of Default
under the Credit Agreement as amended by this Amendment on such date
which has not been waived by the Agent and the Lenders.
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4.2 Authority, No Conflict, No Consent Required. The Borrower
represents and warrants that the Borrower has the power and legal right
and authority to enter into the Amendment Documents and has duly
authorized as appropriate the execution and delivery of the Amendment
Documents and other agreements and documents executed and delivered by
the Borrower in connection herewith or therewith by proper corporate,
and none of the Amendment Documents nor the agreements contained herein
or therein contravenes or constitutes a default under any agreement,
instrument or indenture to which the Borrower is a party or a signatory
or a provision of the Borrower's Certificate of Incorporation, Bylaws
or any other agreement or requirement of law in which the consequences
of such default or violation could have a material adverse effect on
the business, operations, properties, assets or condition (financial or
otherwise) of the Borrower and its Subsidiaries taken as a whole, or
result in the imposition of any Lien on any of its property under any
agreement binding on or applicable to the Borrower or any of its
property except, if any, in favor of the Agent on behalf of the
Lenders. The Borrower represents and warrants that no consent, approval
or authorization of or registration or declaration with any Person,
including but not limited to any governmental authority, is required in
connection with the execution and delivery by the Borrower of the
Amendment Documents or other agreements and documents executed and
delivered by the Borrower in connection therewith or the performance of
obligations of the Borrower therein described, except for those which
the Borrower has obtained or provided and as to which the Borrower has
delivered certified copies of documents evidencing each such action to
the Agent.
4.3 No Adverse Claim. The Borrower warrants, acknowledges and
agrees that no events have taken place and no circumstances exist at
the date hereof which would give the Borrower a basis to assert a
defense, offset or counterclaim to any claim of the Agent or the
Lenders with respect to the Obligations or the Borrower's obligations
under the Credit Agreement as amended by this Amendment.
Section 5. Affirmation of Credit Agreement, Further References. The
Agent, the Lenders, and the Borrower each acknowledge and affirm that the Credit
Agreement, as hereby amended, is hereby ratified and confirmed in all respects
and all terms, conditions and provisions of the Credit Agreement, except as
amended by this Amendment, shall remain unmodified and in full force and effect.
All references in any document or instrument to the Credit Agreement are hereby
amended and shall refer to the Credit Agreement as amended by this Amendment.
All of the terms, conditions, provisions, agreements, requirements, promises,
obligations, duties, covenants and representations of the Borrower under such
documents and any and all other documents and agreements entered into with
respect to the obligations under the Credit Agreement are incorporated herein by
reference and are hereby ratified and affirmed in all respects by the Borrower.
Section 6. Merger and Integration, Superseding Effect. This Amendment,
from and after the date hereof, embodies the entire agreement and understanding
between the parties hereto and supersedes and has merged into this Amendment all
prior oral and written agreements on the same subjects by and between the
parties hereto with the effect that this Amendment, shall control with respect
to the specific subjects hereof and thereof.
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Section 7. Severability. Whenever possible, each provision of this
Amendment and the other Amendment Documents and any other statement, instrument
or transaction contemplated hereby or thereby or relating hereto or thereto
shall be interpreted in such manner as to be effective, valid and enforceable
under the applicable law of any jurisdiction, but, if any provision of this
Amendment, the other Amendment Documents or any other statement, instrument or
transaction contemplated hereby or thereby or relating hereto or thereto shall
be held to be prohibited, invalid or unenforceable under the applicable law,
such provision shall be ineffective in such jurisdiction only to the extent of
such prohibition, invalidity or unenforceability, without invalidating or
rendering unenforceable the remainder of such provision or the remaining
provisions of this Amendment, the other Amendment Documents or any other
statement, instrument or transaction contemplated hereby or thereby or relating
hereto or thereto in such jurisdiction, or affecting the effectiveness, validity
or enforceability of such provision in any other jurisdiction.
Section 8. Successors. The Amendment Documents shall be binding upon
the Borrower, the Lenders, and the Agent and their respective successors and
assigns, and shall inure to the benefit of the Borrower, the Lenders, and the
Agent and the successors and assigns of the Lenders and the Agent.
Section 9. Legal Expenses. As provided in Section 9.2 of the Credit
Agreement, the Borrower agrees to reimburse the Agent, upon execution of this
Amendment, for all reasonable out-of-pocket expenses (including attorney' fees
and legal expenses of Xxxxxx & Xxxxxxx LLP, counsel for the Agent) incurred in
connection with the Credit Agreement, including in connection with the
negotiation, preparation and execution of the Amendment Documents and all other
documents negotiated, prepared and executed in connection with the Amendment
Documents, and in enforcing the obligations of the Borrower under the Amendment
Documents, and to pay and save the Agent and the Lenders harmless from all
liability for, any stamp or other taxes which may be payable with respect to the
execution or delivery of the Amendment Documents, which obligations of the
Borrower shall survive any termination of the Credit Agreement.
Section 10. Headings. The headings of various sections of this
Amendment have been inserted for reference only and shall not be deemed to be a
part of this Amendment.
Section 11. Counterparts. The Amendment Documents may be executed in
several counterparts as deemed necessary or convenient, each of which, when so
executed, shall be deemed an original, provided that all such counterparts shall
be regarded as one and the same document, and either party to the Amendment
Documents may execute any such agreement by executing a counterpart of such
agreement.
Section 12. Governing Law. THE AMENDMENT DOCUMENTS SHALL BE GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF MINNESOTA, WITHOUT GIVING EFFECT TO CONFLICT
OF LAW PRINCIPLES THEREOF, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO
NATIONAL BANKS, THEIR HOLDING COMPANIES AND THEIR AFFILIATES.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date and year first above written.
MATRIX BANCORP, INC.
By /s/ Xxxxx X. Xxxxx
---------------------------------
Its Senior Vice President
---------------------------------
U.S. BANK NATIONAL ASSOCIATION
By /s/ Xxxxx X. Xxxxx
---------------------------------
Its Vice President
--------------------------------
RESIDENTIAL FUNDING CORPORATION
By /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Its Director
---------------------------------
[Signature Page to First Amendment to Credit Agreement]
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